Mod chips allow gamers to ignore manufacturers' regional coding
systems and run cheaper games - made for markets outside Australia
- on their consoles.

Small businessman Eddy Stevens was taken to court by Sony in
2001 for selling Sony PlayStations in which he put mod chips. The
Federal Court found for him in 2002 but an appeal by Sony to a full
bench saw the case decided in the company's favour. Stevens then
went to the High Court.

The High Court appeal hinged on two issues - whether using a mod
chip bypasses a technological protection measure and breaches
Section 116A of the Copyright Act and whether the process of
loading part of a game into the console's random access memory
(RAM) constitutes making a copy.

The High Court decided that the use of a mod chip did not bypass
any technological protection measure.

In deciding that the process of loading part of a game into
memory did not constitute the making of a copy, the court looked at
the Federal Court's earlier determination by Justice Ronald
Sackville which had gone in favour of Stevens.

In Australia, copyright is defined among other things as the
exclusive right to reproduce a work in a material form. In
determining what "material form" meant, Justice Sackville used a
definition from the Copyright Act which said at the time:

"material form, in relation to a work or an adaptation of a
work, includes any form (whether visible or not) of storage from
which the work or adaptation, or a substantial part of the work or
adaptation, can be reproduced."

The copying of part of a game into RAM does not make it possible
to reproduce the game or even a substantial part of it. Hence the
ruling that favoured Stevens.

But the Copyright Act was amended last year in order that the
free trade agreeement with the US could be passed. Now the
definition of material form reads:

"material form, in relation to a work or an adaptation of a
work, includes any form (whether visible or not) of storage of the
work or adaptation, or a substantial part of the work or
adaptation, (whether or not the work or adapation, or a substantial
part of the work or adaptation, can be reproduced)."

Would the same conclusion have been reached if the new
definition was being used?

In May this year, the Federal Attorney-General put out a paper
titled "Fair Use and Other Copyright Exceptions", inviting
submissions by July 1 on ways of addressing copyright issues in the
digital age.

Though no date has been specified for incorporating changes into
the Act, there is a requirement under the FTA to align Australia's
IP laws more closely with those of the US by the beginning of
2007.

What are the chances that modding will be legal once that date
is reached?